HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Bail App. No. 7/2022

Reserved on : 08.04.2022

Pronounced on : 26.04.2022

Deepak Gupta & Ors.

…. Petitioner(s)

Through :- Mr. Satinder Gupta, Advocate

V/s

U.T. of J&K & Anr.

….Respondent(s)

Through :- Mr. Dewakar Sharma, Dy. AG

Coram:

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

O R D E R

26.04 .2022

1. Petitioners/accused namely, (i) Deepak Gupta (age 31 yrs) S/O Sh.

Ashwani Kumar R/O Ward No. 17 near Tangri Palace Kathua, (ii) Tarun

Sharma (age 21 yrs) S/O Shiv Dutt Sharma R/O Ward No.6 Sher Singh

Mandi Kathua & (iii) Hitesh Gupta (age 24 yrs) S/O Sh. Rakesh Gupta

R/O Ward No. 2 Kathua, have sought regular bail in FIR bearing No.

56/2021 of police station Rajbagh Kathua for commission of offences

contrary to sections 8/21/22/29 of Narcotic Drugs Psychotropic Substance

Act 1985 (for short the NDPS Act). It is averred, that petitioners are

permanent residents of U.T. of J&K and citizens of India having no

criminal objectionable antecedents whatsoever are in their young age, but

have been subjected to frivolous criminal case infringing their right of

liberty and their entitlement to the presumption of innocence; that the

petitioners came to be arrested on 15-09-2021 for the allegations that 24

bottles of CIREX 100ml each with mark WINCIREX were found from

them while driving a car BREEZA bearing No. JK08H/5000 on a naka

checking point opposite Rajbagh Police Station Kathua; that the court of

Ld. Addl. Sessions Judge Kathua vide order dated 14-12-2021 framed

charges against petitioners u/ss 8/21/22/29 of NDPS Act to which the

petitioner/accused pleaded not guilty and trial is being conducted in the

said court; that before framing charges petitioners had moved an

application on 29-10-2021 for grant of bail, but Ld. Addl. Sessions Judge

Kathua rejected the bail application vide order dated 14-12-2021; that the

respondent/prosecution have not disclosed as how the alleged 24 bottles of

Sr. No. 142

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CIREX 100ml each marked as WINCIREX are narcotic drugs/

psychotropic substance/manufacture drugs and even if those are so then

also for how much quantity, commercial/intermediate or small the

petitioners are being charge sheeted; that as per FSL report only 2 bottles

of specimen out of 24 bottles seized bottles accompany the charge sheet

has only reference to the content of Codeine Phosphate as being a narcotic

analgesic.

2. Respondent/U.T. of J&K has opposed the bail application on the grounds,

that from the possession of accused persons while driving the vehicle car

BREEZA bearing No. JK08H/5000, 24 bottles of WINCIREX were

recovered whereby the accused have committed offences u/ss 8/21/22/29

of NDPS Act and the final report after usual investigation has been

produced in the court of Ld. Addl. Sessions Judge Kathua where the trial is

being conducted. It is contended, that the court cannot appreciate evidence

at the stage of deciding the bail application, accused have committed

heinous offences against society and their bail application deserves to be

rejected and dismissed, as there is every likelihood that the accused may

jump over the conditions of bail and influence the vital prosecution

witnesses.

3. Ld. Counsel for petitioners while making a strong case for their

enlargement on bail has vehemently argued, that the charge sheet laid in

the court of Ld. Addl. Sessions Judge Kathua does not depict that the

quantity of alleged contraband recovered from the accused persons is

commercial, one bottles of WINCIREX Syrup contain 10 mg of codeine

phosphate out of 5ml which when calculated comes to total 48 grams of

codeine phosphate in 24 bottles of WINCIREX Cough Syrup (100ml each)

which is intermediate quantity. It is argued, that Delhi High Court in a case

law, titl